Grounds for Appeal in Consensual Divorce under Turkish Law

A consensual divorce is when spouses mutually agree on all aspects of the divorce (custody, alimony, property division, etc.) and apply to the court. According to the Turkish Civil Code, couples who have been married for at least one year can file for a consensual divorce.

After a consensual divorce decision is made, one or both parties can appeal the decision. An appeal is when a higher court reviews the decision of a lower court. In consensual divorce cases, an appeal means that the regional court will re-evaluate the divorce decision made by the local court.

This article will discuss the reasons for appealing a consensual divorce decision. The aim is to help individuals understand the circumstances under which they can appeal a consensual divorce decision and how this process works.

2. Consensual Divorce Process:

The consensual divorce process is faster and simpler compared to other types of lawsuits. However, it still requires following certain steps and preparing specific documents.

Filing a Lawsuit and Necessary Documents:

A consensual divorce lawsuit can be filed jointly by the spouses or by one spouse with the other’s acceptance. The lawsuit is filed in the Family Court at the spouses’ last residence. The following documents must be prepared when filing the lawsuit:

Consensual divorce petition: A petition that includes the spouses’ divorce requests and the issues they have agreed upon.
Divorce protocol: A document detailing all issues related to the divorce (custody, alimony, property division, etc.) that the spouses have agreed upon.
Marriage certificate and population registry copies: Documents verifying the spouses’ identity and marriage information.
2 photographs: Recent passport-sized photographs of the spouses taken within the last six months.
Case fee and advance costs: Fees that must be paid to the court.

Preparing the Divorce Protocol:

The divorce protocol is one of the most crucial stages of the consensual divorce process. The protocol should detail all issues related to the divorce (custody, alimony, property division, compensation, etc.) that the spouses have agreed upon. It is important that the protocol reflects the genuine intentions of the parties and is fair. The parties can seek legal assistance from a lawyer when preparing the protocol.

Hearing in Court:

In consensual divorce cases, a decision is usually made in a single hearing. At the hearing, the judge listens to the parties to confirm their intention to divorce. Then, the judge reviews the divorce protocol to assess whether the agreed-upon issues comply with the law. If there are any illegal or unfair provisions in the protocol, the judge may correct them or give the parties time to make corrections. If there are no issues with the protocol and the parties’ intention to divorce is definite, the judge will decide on the divorce.

3. Grounds for Appeal in Consensual Divorce:

The grounds for appeal in consensual divorce generally include material errors, procedural errors, violation of the freedom of agreement, children’s welfare, public order, and new evidence or circumstances.

Material Errors:

Material errors in the divorce protocol can be grounds for appeal. These errors typically involve issues like property division, alimony amount, and compensation. For instance, underreporting a spouse’s assets, setting an alimony amount that does not meet the child’s needs, or unjustly low compensation amounts are considered material errors.

Procedural Errors:

A court’s failure to follow procedural rules can also be grounds for appeal. For example, not listening to the parties sufficiently, requesting incomplete documents, restricting the parties’ right to defense, or making erroneous legal assessments are considered procedural errors.

Violation of the Freedom of Agreement:

If one of the parties was under pressure, threatened, or deceived while signing the divorce protocol, the freedom of agreement is violated. In such cases, the divorce decision can be appealed. For example, if one spouse coerces the other into divorce, gains unfair advantage in property division, or forces the other to waive alimony rights, it violates the freedom of agreement.

Children’s Welfare:

The welfare of children not being adequately considered in the divorce protocol is also grounds for appeal. Issues like custody, personal relationship arrangements, and alimony must prioritize the child’s best interests. For instance, giving custody to an undeserving parent, preventing the child from having a personal relationship with the other parent, or setting an alimony amount that does not meet the child’s needs indicate that the child’s welfare was not considered.

Public Order:

Provisions in the divorce protocol that violate public order can be grounds for appeal. Public order includes general moral values of society, fundamental rights and freedoms, and principles of justice and equality. For example, if the divorce protocol does not meet the condition of irreparable breakdown of the marriage or if the property division leaves one spouse impoverished after the divorce, it violates public order.

New Evidence and Circumstances:

New evidence or circumstances that arise after the court decision can also be grounds for appeal. For example, significant changes in one spouse’s assets, new developments regarding child custody, or changes affecting the alimony amount after the divorce decision are considered new evidence or circumstances.

4. Appeal Process:

The appeal against a consensual divorce decision must be made within 2 weeks from the notification of the decision. The appeal application is made with a petition addressed to the court that issued the decision. The petition must be submitted to the court that issued the decision.

Points to Include in the Appeal Petition:

The appeal petition should clearly and explicitly state the grounds for the appeal. The petition should include the following points:

Information of the parties: Name, surname, Turkish ID number, address, etc.
Information about the appealed decision: Name of the court, decision date, decision number, etc.
Grounds for appeal: Detailed explanations of why the decision is incorrect, what material or procedural errors were made, how the freedom of agreement was violated, how the children’s welfare was not considered, what constitutes a violation of public order, etc.
Requested outcome: The acceptance of the appeal and the annulment or correction of the decision should be requested.
Evidence list: If there is evidence supporting the grounds for appeal (witness statements, documents, etc.), a list of these should be attached to the petition.

Regional Court’s Review:

The appeal petition is sent to the regional court by the court that issued the decision. The regional court reviews the file and evaluates the grounds for appeal. If necessary, the court can call the parties to a hearing or request additional evidence.

Possible Decisions from the Appeal:

The regional court can make one of the following decisions after reviewing the appeal:

Decision to reject the appeal: If the regional court decides there is no error in the local court’s decision, it will reject the appeal. In this case, the local court’s decision becomes final.

Decision to accept the appeal and annul the decision: If the regional court finds an error in the local court’s decision, it will accept the appeal and annul the decision. In this case, the file is sent back to the local court, which must make a new decision in accordance with the regional court’s ruling.

Decision to accept the appeal and correct the decision: If the regional court finds a minor error in the local court’s decision, it can accept the appeal and correct the decision. In this case, the corrected decision becomes final.

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